O'Brien, R v

In a transitional mandatory-life case, the minimum term must not exceed that likely under the Secretary of State’s pre-December 2002 practice. The applicable May 2002 guidance requires a fact-sensitive choice of starting point. A 12-year starting point is ordinarily for a killing arising from a quarrel or loss of temper between people known to each other. Exceptionally high culpability may instead justify the higher 15/16-year starting point, even where the listed examples do not expressly include the case.

The use of a firearm, deliberate arming, an announced intention to kill and a cold-blooded killing are powerful aggravating features. They do not, however, necessarily make an offence especially grave so as to justify a term of 20 years or more.

The appellant was convicted at Nottingham Crown Court of murder and making a threat to kill. He received the mandatory life sentence for murder, with a minimum period calculated as 24 years less remand credit, and a concurrent three-year sentence for the threat.

After being injured during an altercation at a public house, he obtained and loaded a shotgun, returned to the premises and fired at a departing car. The driver died. He appealed only against the minimum period, contending that it was manifestly excessive under the transitional sentencing regime for offences committed before the commencement of the relevant provisions.

1. Appeal allowed. The 24-year minimum period was manifestly excessive. The appropriate minimum period was 18 years, less credit for the ten months and three days spent on remand. The court calculated the resulting period as 17 years, one month and 28 days, subject to the precise monthly calculation.

2. The governing statutory cap was found in Criminal Justice Act 2003, Schedule 22. Under that regime, the court could not fix a period longer than the period which the Secretary of State would probably have notified under the practice followed before December 2002. Applying Sullivan [2004] EWCA Crim 1762, the court held that the relevant guide was the May 2002 practice direction, rather than the later guidance.

3. The ordinary 12-year starting point did not apply. This was not a killing arising from a quarrel or loss of temper between people known to each other. The appellant deliberately armed himself with a firearm, announced an intention to kill and then killed an innocent person. Those facts justified the higher 15/16-year starting point for exceptionally high culpability and a substantial upward adjustment.

4. Nevertheless, the offence did not fall within the especially grave category meriting a term of 20 years or more. The appellant’s age, the absence of prolonged planning, and his limited history of violent offending prevented that classification. The court would also have selected 18 years had it adopted either a 12-year or 14-year starting point, once the aggravating features were taken into account.

• Court of Appeal (Criminal Division): Allowed the appeal against the minimum period and substituted 18 years less remand credit: [2005] EWCA Crim 173.

• Crown Court at Nottingham: Convicted the appellant of murder and making a threat to kill. Imposed life imprisonment with a minimum period calculated from 24 years, less remand credit.